National law – CZ – Legal system – module 1

The legal system (legal system) is the sum of all legal norms that are within a given period of time in the territory of that State. Legal standards are grouped together into broad units, depending on how they relate relationships and what is the subject legislation. The most general division of the legal system is the division into private law and public law. This division has become of crucial importance since the year 2014, in which the new Civil Law (the new Civil Code) contains a basic regulation of all legal branches of private law.

The legal norms are divided into several sectors according to the constitutional, family, criminal, labor, civil, commercial, administrative, financial law. The sources of law are the forms, the forms in which the law enters into. Legal theory distinguishes between the two law groups from the time of Roman law:

Private – whose primary concern is the protection of the interest of the individual, is regulated social relations on the basis of equality of the participants, this includes the right of civil, family, business

Public – includes regulations issued for the benefit of the entire society, governed by the state relations in which the State acts as a superior participant, the bearer of power (authorities state) against subordinates such as constitutional, criminal, administrative, financial

There is no precise boundary between public and private law – we can
include, for example, labor law.

Constitutional law is a pillar of law. It is part of public law. It mainly regulates:

  • values and principles that determine the nature of state power (republic, democracy, rule of law, etc.)
  • the structure of the state bodies and their functions (status of parliament, government, courts, president, etc.)
  • territorial organization, the status of municipalities,
  • addressing national issues, the status of minorities, the status of a citizen (citizen status, citizenship issues, fundamental rights and freedoms, citizens’ obligations)
  • principles of foreign policy, position in the international community.

Legislation creation and application can still be within a single state internally divided. This is especially true if the state is established as a federal one. Czechoslovakia was also a federation between 1969 and 1992. At that time, Czechoslovakia had its own bodies, Slovakia had its bodies, and federal bodies were superior to them. At that time existed the Czech National Assembly, the Slovak National Assembly and the Federal Assembly. The Federal Assembly adopted regulations on the basic issues of the functioning of the state, while the individual national authorities adjusted their own affairs.

This was the case, for example, in the territory of today’s Czech Republic at the time of the existence of Austria-Hungary (creation of dualism: 1867). First there was the Habsburg constitution – Austrian, where the Hungarians were one of the nations, just like the Czechs. Unlike the Czechs, however, the Hungarians gained the origin of dualism. That means that the monarchy began to be called Austria-Hungary: it was obvious that Hungary wanted to modify its own affairs. Therefore, some issues related to defense policy, military matters and similarly important issues were addressed at federal level, but other common issues were taken by the Austrian and Hungarian legislatures in particular.

A similar division functioned in the time of the Czechoslovak federation (name) ČSFR did not apply until 1989, i.e. the title has been given a “federative” attribute since the fall of totalitarianism, but this does not mean that there was no federation before 1989 – it is not essential whether it is in the title – the name prior to 1989 was governed by ideological).

The character of the Czech state summarizes the first article of the Constitution of the Czech Republic, stating that Czech the republic is a democratic, sovereign, unified, legal state. At the same time, the democratic attribute means that public power is exercised through representatives who are elected in free parliamentary elections. The fact that the state is sovereign means that the Czech authorities cannot have the sovereignty of an international body. The Czech Republic is a united state because it is not divided according to a federal arrangement. Finally, the legal state means that the state authorities must comply with the law. They have to rule the law, not the specific authorities or officials and their interests (the fact is that in history the dictatorial regimes also tried to impress the government of the law, but in reality the law and the courts were heavily abused to fulfill political interests). In history, however, in some phases, it was true that the sovereign was not limited to anyone at all (sometimes God, but sometimes the sovereignty of God is identified) or nothing.

Part of the legal order, or the individual legal branches, are also legal principles = certain rules. Legal principles have been shaped by classical Roman lawyers – hence have undergone a long history of social development. Today, their existence is related to the contemporary state of the law, whether or not expressly expressed in current legal norms.

It is said that the legal principles rationalize the whole legal order, that they are its starting point and criterion, leading ideas. Sometimes they are explicitly expressed in a legal regulation, sometimes they are not written, but regardless of this, they always apply – by their very nature. They are ranked among the sources of law, but no specific rule of conduct is contained, they are highly abstract – they are also called “standards without concrete testimony”. This shows the direction that is followed or does not hinder specific legislation. A particular standard reads everyone out of the prescription, but without at least an intuitive knowledge of the principles on which that regulation stands, a superficial observer can hardly differentiate the correct interpretation of the norm from the wrong one. Nevertheless, let us never forget that legal principles are not values in themselves, they are not self-serving, they are neither dogmas nor higher goals to which the legal regulation would be – even the highest legal principles are still just instruments to serve achieving one, to achieve justice.

The most important purpose of legal principles is their role in the legislative process and further in the process of interpretation or application of law (legal principles extend the argumentation space, fill the “gaps” in the law, or fill in vague legal terms). A high degree of generality of legal principles often leads to a very subjective consideration of a given authority (e.g. a judge) – when interpreting a law, sometimes the court is obliged to deviate from a clear text and focus on the purpose and purpose of the law, taking into account relevant legal principles, cases where the text of the law would obviously lead to absurd and perhaps irrational situations ⇒ The Constitutional Court of the Czech Republic has declared that the court is not expressly bound by the literal wording of the statutory provision but may and may even deviate from it if it is necessary for serious reasons the purpose of the law, a systematic link, or one of the principles. However, it is necessary to avoid arbitrariness in such cases and the court’s decision must be based on rational reasoning – the purpose and purpose of the law cannot be sought only in the words and sentences of a legal regulation, since the law contains and must always contain principles recognized by democratic legal states.

In interpreting or applying the law, it is therefore necessary to take into account the possibility of applying legal principles, but at the same time taking into account the degree of generality. It is therefore desirable to distinguish principles relating to the entire scope of a particular legal order and principles which are valid only for a particular branch of law or legal institution. There are, for example, principles operating within the civil procedural law and also principles relating to criminal proceedings, which in one and the same case may contradict each other in the application, but given their distinction to principles falling within a particular branch of law, they cannot be identified as principles that collide.
The current trend is the development of legal principles, particularly at international level ⇒ the principles of European contract law (European Contract Law) have emerged within the framework of the European Contract Law Commission, which is made up of a group of independent lawyers and academics.

Legal principles are considered to be the source of law at all, others are typical of public or private law, and others are relevant even for special legal branches.
Among the municipal principles we can include:

  • ignoratia iuris non excusat – ignorance of the law
  • lex posterior derogat priori – the law later abolishes the earlier law
  • in dubio pro reo – in doubt in favor of the defendant
  • lex retro non agit – the law does not act backwards
  • lex specialis derogat generali – a special regulation abolishes the general rules
  • lex superior derogat inferiori – the law of higher legal force cancels the law of lower legal force
  • nemo ultra posse obligatur – no one is obligated
  • nullum crimen, nulla poena sine lege – no crime, no punishment without law
  • pacta sunt servanda – contracts must be observed
  • neminem leadere – do not harm others

And other principles such as the principle of justice, the principle of no harm, equality before the law (it follows directly from the principle of justice, the law applies equally to all subjects, means exclusion of privileges, and exclusion of respect for status – nobleman, subject or social class) the principle of the rule of law, the principle of legal certainty, the principle of the rule of law, the principle of legality (the rule of law is the basic prerequisite for the good functioning of law, a state which fails to respect its own laws, is not competent to fairly demand their fulfillment by its citizens, a prerequisite for fulfilling the idea of justice).

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